The Defendant moves to be resentenced pursuant to the Drug Law Reform Act of 2009 (the "2009 DLRA" or "2009 Drug Law Reform Act", Chapter 56 of the Laws of 2009, codified at CPL 440.46). That motion is opposed by the People. For the reasons stated below, the Court holds that the Defendant is statutorily eligible for resentencing but that substantial justice dictates the denial of Defendant's motion. Defendant's motion for resentencing is therefore denied.

STATEMENT OF FACTS

Defendant was convicted after a jury trial in 2002 of the crime of Criminal Sale of a Controlled Substance in the Third Degree and sentenced, after being adjudicated as a predicate felony offender by Justice Edwin Torres on January 14, 2003, to an indeterminate sentence of imprisonment with a term of 8-16 years. In that case, the Defendant sold .8 grains of cocaine for $10 to an undercover police officer during a buy and bust operation. According to Defendant's counsel, his current earliest release date would be June 25, 2010, his Conditional Release Date is February 25, 2013 and his Maximum Expiration Date is June 25, 2018.

Defendant was convicted of Attempted Burglary in the Third Degree and sentenced to 1-3 years incarceration in 1986. He was convicted of Attempted Robbery in the Second Degree and sentenced to six years in prison plus five years of probation in 1991. In 1992, he was convicted on the same date of two counts of Criminal Possession of a Controlled Substance in the Third Degree and one count of Criminal Possession of a Controlled Substance in the Fifth Degree and given indeterminate terms of 2-6 years, 4 ½-9 years and 2-4 years incarceration respectively.

In addition to these felony convictions, Defendant has 11 misdemeanor convictions for assault, resisting arrest, narcotics possession and public health law violations. At sentencing, Justice Torres said he was "tilting towards" the maximum indeterminate sentence of 12 ½-25 years incarceration to "get him [the Defendant] off the street permanently" and indicated that he believed the Defendant perjured himself during his testimony. He then sentenced the Defendant, [*2]however, to an indeterminate sentence of 8-16 years incarceration, explaining that he was "taken by" the recommendation of the People to impose that lower term. Defendant's counsel describes Mr. Brown as a "homeless drug addict" whose crimes were all related to his narcotics addiction. Defendant's counsel, in his motion, recounts the horrendous circumstances of Defendant's upbringing in a broken home, with a cocaine addicted mother, living in a series of condemned buildings and becoming addicted to crack shortly after he was ten years old.

Mr. Brown has been assessed with 21 disciplinary infractions while incarcerated. The People, in their response to Defendant's motion, assert the following facts (without contradiction from Defendant's counsel) regarding Defendant's disciplinary history:

[W]hile an inmate, petitioner, has been subjected to disciplinary action twenty-one times. This includes fifteen Tier 2 infractions and six Tier 3 infractions. Petitioner's Tier 3 infractions include those for possession of a weapon, possession of an altered item, violent conduct, and drug use. Petitioner's Tier 2 infractions include those for violent conduct, fighting and possession of prison contraband. Further, thirteen of these infractions resulted in petitioner receiving time in the correctional facility's Special Housing Unit (SHU) and/or keeplock time. Brief of Nicholas Tuffarelli, Office of Special Narcotics Prosecutor at 11 (footnotes omitted).

Petitioner first entered the Department of Correctional Services ASAT drug treatment program in May of 2009 after approximately six years of incarceration and only a few weeks after the enactment of the 2009 DLRA. He was initially seen as doing well in the program. However, he was then removed from the program four months later for disciplinary reasons. Defendant's counsel asserts that the Defendant is committed to reentering the program.

There have also been some positive reports with respect to Defendant's recent time in prison. Defendant completed the transitional services program in 2003. He has worked in various capacities while incarcerated and has been trained or certified in a number of occupational skills. He has enrolled in GED classes but has not been able to complete them because of the time he has spent in disciplinary confinement. He enrolled in a pre-GED class in April of 2009. A July, 2009 report indicated that he was a "pleasure" to have in class and had earned excellent or above-average marks in all assessment categories.

Defendant's counsel avers that if released, Defendant would be able to count on the support of his siblings and a close friend he has been corresponding with while in prison to assist in his reintegration. The Center for Appellate Litigation, which represents the Defendant, also asserts that it would assist Mr. Brown if released through its reintegration program.

CONCLUSIONS OF LAW

Defendant's Eligibility for Resentencing:

Where a Defendant has moved to be resentenced pursuant to the 2009 DLRA, the Court must first determine whether the Defendant is eligible for resentencing. The parties in this case disagree about whether the Defendant is eligible for resentencing in one respect. The People argue that Defendant's conviction for Attempted Robbery in the Second Degree on October 9, 1991, a violent felony offense under the Penal Law, makes him ineligible for resentencing. The [*3]Defendant argues that this conviction does not bar resentencing. The disagreement between the parties on this point hinges on two related issues of statutory construction.

Meaning of the "Ten Year Look-Back" Provision:

The 2009 DLRA provides, inter alia, that a Defendant who "is serving a sentence on a conviction for or has a predicate felony conviction for an exclusion offense" is not eligible to be resentenced. An exclusion offense is defined as:

[A] crime for which the person was previously convicted within the preceding ten years, excluding any time during which the offender was incarcerated for any reason between the time of commission of the previous felony and the time of commission of the present felony, which was: (i) a violent felony offense as defined in section 70.02 of the penal law. . . . CPL 440.46 (5) (a).^[FN1]

The People point out that Defendant's violent felony conviction in 1991 was within ten years of his 2002 conviction for the instant offense, if the time he was incarcerated between his 1991 and 2002 convictions is tolled. The People further argue that the 2009 DLRA excludes offenders who have been convicted of a violent felony offense from resentencing if they were convicted of that offense within ten years of their instant drug offense (tolling the running of that time for any period of a defendant's incarceration).

Defendant argues that this ten year period is measured from the date of a violent felony conviction to the date of a resentencing application. Moreover, Defendant argues that in calculating this period, the period of Defendant's incarceration on the instant drug offense does not toll the running of this ten year period. Defendant points out that under his interpretation of the statute, more than 10 years elapsed between his 1991 violent felony conviction and his instant resentencing application, even when his period of incarceration between that 1991 conviction and the date of his instant drug offense is excluded from the ten year calculation.

The Court in People v. Roman (Unreported Decision, Ind. No. 4391 & 6894 of 1996, Bronx County Supreme Court, December 2, 2009 [Mogulescu, J.]) recently adopted the interpretation of the statute urged by the Defendant here. That interpretation is also shared by the State Department of Correctional Services, which has notified inmates in writing of their construction of the statute.^[FN2] The People's interpretation of the statute is shared by the author of the McKinney's Practice Commentary on the 2009 DLRA, Peter Preiser. See McKinney's Consolidated Laws of 2009, Practice Commentary, CPL 440.46.^[FN3] [*4]

The Court has reviewed the available legislative history of the 2009 DLRA by attempting to obtain any of the materials in the legislative bill jacket for the Act and reading the transcripts of the floor debates concerning the Act in the Senate and Assembly. With respect to the bill jacket, the Court has been informed by the Governor's office, and has informed the parties, that there is no material in the bill jacket other than the bill itself. This is because the 2009 DLRA was enacted as part of a larger budget bill and for this reason the normal submissions which might be made by interested groups and legislators on substantive legislation were not submitted to the Governor's office prior to the bill's signing.

There is only one passage in the floor debates which addresses the resentencing issue. That occurred in the Senate, when Senator Eric Schneiderman, the Chairman of the Senate Codes Committee, was giving a summary of the legislation's provisions. Addressing the 2009 DLRA's resentencing provisions, Senator Schneiderman noted that "[a]nyone with a violent felony within 10 years, a myriad of ineligible offenses, including all sex offenses, you're not eligible to apply" [for resentencing]. Senate Debate Transcript of 2009 DLRA, April 2, 2009 ("Senate Floor Debate") at 2683-2684.^[FN4] The Court does not believe that this statement is particularly informative with respect to the eligibility question which is in dispute here. Senator Schneiderman's remarks, in context, were seeking to describe the broad parameters and rationales for the 2009 DLRA. He was not seeking to parse the precise methods which courts should use in calculating the 10 year eligibility bar. In the Court's view, the appropriate construction of the DLRA provision in dispute here is simply unclear. Although a close question, the Court concludes, for the reasons stated below, that the construction of the ten year look-back period which most likely reflects the legislature's intent is the one advanced by the Defendant.

Factors Relevant to Interpretation of the Look Back Provision

Defendant's interpretation of the statute is grounded on what he asserts is a simple reading of its plain meaning. Since the Defendant was not convicted "within the preceding ten years" of a violent felony, he argues, he is eligible for resentencing. As Justice Mogulescu framed the argument in Roman:

[T]he statute [the 2009 DLRA] does not qualify the term "within the preceding ten years" with reference to any time frame thus imposing a plain meaning to this phrase, viz, that this time frame is measured from the date of the motion. When statutory language is clear and unambiguous, it should be construed as to give effect to the plain meaning of the words used." People v. Finnegan, 85 NY2d 53, 58 (1995). Roman, supra at 2.

The People's argument, in the Court's view, is grounded less in the literal words of the statute and more on an argument that the construction advanced by the Defendant would be incongruous with the structure of the Penal Law, the 2009 DLRA and the legislature's previous drug law reform enactments. There are a number of points which could be advanced in support of this argument. Unlike 10 year "look-back" provisions which serve to enhance sentences for offenders previously convicted of a felony, the construction urged by the Defendant would not provide for any tolling of the running of the ten year period during the time a defendant was incarcerated on an instant drug conviction.^[FN5] The ten year period would run during this time, even though an incarcerated offender would be much less likely to be convicted of committing a new violent felony offense while in prison than an offender at liberty.

Although the statute uses the term "predicate felony conviction" in defining an exclusion offense, that term is consistently used in the Penal Law to define the relationship between a prior conviction and an instant conviction, rather than the relationship between a prior conviction and an application or a motion.^[FN6] It is well-settled under New York law that "words having a precise and well-settled legal meaning in the jurisprudence of the state are to be understood in such sense when used in statutes, unless a different meaning is plainly indicated." (McKinney's Cons. Laws of NY, Book 1, Statutes ["McKinney's Statutes"] § 233); People v. Reed, 265 AD2d 56, 66 (2d Dept 2000), lv denied, 95 NY2d 838. Indeed, in addition to using the term "predicate felony conviction" the tolling provision of the resentencing statute uses the term "present felony" to describe an instant drug conviction, the same term which is used in the predicate felony conviction provisions of the Penal Law. Id. The well-settled meaning of the term "predicate [*6]felony conviction" is consistent with the construction of the resentencing statute urged by the People.

In previous drug law reform enactments, the legislature defined the class of offenders who would receive the longest terms on resentencing by reference to violent felony convictions which predated instant drug convictions rather than, as Defendant urges the statute should be construed here, violent felony convictions which predated resentencing applications.^[FN7] The construction urged by the Defendant would thus mark a departure in this respect from the formulation in previous reform enactments.

While the purpose of the 2009 DLRA is obviously to ameliorate what the legislature saw as inordinately high sentences for certain drug offenders, the legislature has consistently treated drug offenders with prior violent felony convictions much more harshly than other drug offenders.^[FN8] Thus, the People argue, providing such similarly harsh treatment to offenders with prior violent felony convictions here would be consistent with the legislature's previous drug law reform enactments. While the language of the resentencing provision might arguably be most naturally read as supporting Defendant's view of its construction, there are also arguments that the wording of the provision itself, even without considering its context, support the People's view of its meaning.^[FN9] Finally much of the language in the resentencing provision is repeated, [*7]almost verbatim, in two other sections of the 2009 DLRA dealing with which offenders are eligible for drug treatment diversion. See § 4 of the Act, adding new §§ 216 (1) and 216 (3) (a) (i) to the Criminal Procedure Law. Those provisions, although addressing a different issue, quite clearly indicate that the exclusion for a prior violent felony conviction applies when a conviction is within ten years of an instant drug offense and may indicate that the legislature intended the same construction to apply to the resentencing provision. In short, there are significant arguments that the language of the statute along with its context within the 2009 DLRA, as a part of the legislature's drug law reform efforts over the past five years and as a part of the Penal Law, indicate that the reading of the 10 year look-back provision urged by the People is the most reasonable one. See McKinney's Statutes, § 97. ("It is a fundamental rule of statutory construction that a statute or legislative act is to be construed as a whole, and that all parts of an act are to be read and construed together to determine the legislative intent. . . Statutory language, however, strong, must yield to what appears to be the intention and that is to be found not in the words of a particular section alone but by comparing it with other parts or provisions of the general scheme of which it is a part.")

It is axiomatic, of course, that in construing a statute, courts should look to the intent of the legislature in enacting the law. Carney v. Philippone, 1 NY3d 333 (2004), rearg denied, 2 [*8]NY3d 794. It is also well-settled that the meaning of a statute must be divined first and foremost from its literal reading. McKinney's Statutes § 92. That rule is not, of course, inviolate. Where a statute is ambiguous, the construction should be adopted which will not cause "objectionable results, or cause inconvenience, hardship, injustice, mischief, or absurdity". Id. § 141. A statute should not be read in a manner which produces a clearly irrational result which the legislature could never have intended, even that result would be consistent with the statute's literal wording. People v. Snow, 138 AD2d 217 (4th Dept 1988), affd, 74 NY2d 671 (1989). The legislature, however, "is presumed to mean what it says . . . [t]he language of a statute is generally construed according to its natural and most obvious sense, without resorting to an artificial or forced construction". McKinney's Statutes § 94.

Here, the Court's conclusions are informed first, as they were for Justice Mogulescu, by the plain meaning of the statute. There are valid linguistic arguments for why the reference point for the ten year look-back provision might be read as the People contend. (See n. 9 supra). But no amount of verbal parsing can overcome the plain fact that the most natural construction of the law is to read its reference point as the date of a resentencing application.

The fact that there is no toll for incarceration with respect to instant drug offenses might be seen as incongruous. But it is hardly irrational. Moreover, while incarceration tolls are a staple of sentencing enhancements for prior felony convictions under the Penal Law, they have often been omitted by the legislature in defining the closely related issue of which prior convictions may serve to enhance the degree of an instant criminal offense.^[FN10]

The Court noted supra that the well-established meaning of the term "predicate felony conviction" under New York law was clearly consistent with the People's construction of the statute. On the other hand, however, there is a strong argument that the term "predicate felony conviction" was not intended to be construed according to its well-settled meaning in the 2009 DLRA. That is because if it were so construed, a violent felony conviction which occurred at the same time as an instant drug offense (or at a latter time) would not serve to bar a defendant's resentence, even if that conviction occurred within ten years, so long as the defendant was no longer serving a sentence for that violent felony offense. For example, an offender who was sentenced to 2 years for a violent felony offense and 4 ½-9 years on a drug crime at the same time and had finished serving their violent felony sentence at the time of a resentencing application would, were the term "predicate felony conviction" given its well-settled meaning, not have a "predicate felony conviction" for a violent felony offense at the time of their resentencing. Such a violent felony offender would thus not be barred by the ten year rule. This obviously was not the intent of the legislature in enacting the statute.

In a broader sense, the construction of the resentencing provision must be informed by the fact that the 2009 DLRA treats offenders with certain objectionable prior convictions much more harshly than similarly situated offenders were treated in the 2004 and 2005 DLRA. This is true [*9]in two respects. First, while the 2004 and 2005 Acts provided higher sentencing ranges for drug offenders with a prior violent felony conviction, the 2009 Act bars resentencing for such offenders entirely. Second, while the previous Acts reserved the harshest resentencing treatment for offenders with a prior violent felony conviction, the 2009 DLRA expanded the category of ineligible offenders to persons who have been previously convicted of offenses not eligible for Merit Time.^[FN11] Having, for the first time, barred resentencing entirely for a broad swath of offenders with certain prior convictions under the 2009 law, it was not unreasonable for the legislature to simultaneously significantly modify the criteria under which those exclusions would apply. For all of these reasons, the Court holds that the Defendant is not barred from resentencing by virtue of his previous conviction for a violent felony offense.

In light of this conclusion, the Court has not reached as academic the second point of dispute regarding the Defendant's eligibility for resentencing: whether the fact that he was not previously formally adjudicated as having been convicted of committing a violent felony bars such a finding in connection with his resentencing now.

Court's Discretionary Determination on Defendant's Resentencing:

Despite the fact that the Defendant is eligible for resentencing, the Court finds that such resentencing should not be granted in this case. The 2009 DLRA provides that an eligible defendant shall be resentenced pursuant to Penal Law §§ 60.04 & 70.70 unless "substantial justice dictates" that resentencing be denied. CPL 440.46, subdivision (3), referencing § 23 of chapter 738 of the laws of 2004 (the "Drug Law Reform Act of 2004").^[FN12] In making a resentencing determination, the Court may consider "any facts or circumstances" relevant to the imposition of a new sentence which are submitted by the Defendant or the People and in addition shall consider a defendant's institutional confinement record. Such a review shall include a petitioner's disciplinary history and participation or willingness to participate in correctional treatment or programming. Id.

The legislature did not define what the term "substantial justice dictates" means but a number of parameters of the statute are obvious from its language and legislative history. First, where a Defendant is eligible for resentencing, resentencing is not mandatory. Courts rather have [*10]a "measure of discretion" in determining whether or not to grant a resentencing application. People v. Vasquez, 41 AD3d 111 (1st Dept 2007), lv dismissed, 9 NY3d 870. It is also obvious that the statute is not neutral in guiding courts as to how to exercise that discretion. Rather, "there is a strong presumption in favor of granting a resentencing application for all eligible defendants". People v. Lopez, 10 Misc 3d 1056(A) (New York County 2005).

With respect to Mr. Brown, as with most other defendants, there are a variety of factors which, in the Court's view, should weigh heavily in the analysis and not all of them tilt in the same direction. The strongest factor arguing for resentencing in this case, in the Court's view, are the facts underlying the Defendant's instant conviction. As was noted supra, the Defendant in this case was convicted of selling less than a grain of cocaine and given a sentence of 8-16 years. That is precisely the kind of low-level offense which the legislature was targeting for resentencing consideration in the 2009 DLRA. The fact that Mr. Brown was apparently an addict at the time of the commission of his crime also strongly argues that resentencing should be considered in this case. Drug treatment may be much more effective at reducing crimes committed by such addicted offenders than mandatory minimum prison sentences.

When the facts are broadened to include Defendant's entire criminal history and his time while incarcerated, however, the picture becomes much less salutary. The Defendant, by the Court's calculation, has 17 criminal convictions. Six of these were for felonies (although three occurred at the same time) and 11 were for misdemeanors. What is much more significant, however, in the Court's view, is that the Defendant has previously been convicted of a violent felony offense, the crime of Attempted Robbery in the Second Degree. The fact that the Court has concluded, in what it regards as a very close question, that the Defendant is technically eligible for resentencing does not mean that his violent felony conviction should not be strongly considered here. As noted supra, the legislature has consistently treated drug offenders with a prior violent felony conviction significantly more harshly than all other classes of drug offenders. Moreover, had the 2009 DLRA been in effect in 2003, when the Defendant was sentenced, he would be subject to a higher mandatory minimum sentence than he in fact faced six years ago. Had the 2009 law been in effect in 2003, the Defendant would be facing a determinate sentence with a range of between 6 and 15 years (unless he were able to successfully argue that he was not in fact convicted of a prior violent felony offense or that his conviction was unconstitutional).^[FN13][*11]

As the Court noted in its previous decision in People v. Jones, NY SlipOp 52483 (December 10, 2009), the sentence imposed by the original sentencing court should weigh heavily in any resentencing determination, particularly where, as here, that sentence was imposed after a trial. The trial court in this case obviously had more information about the Defendant (at the time sentenced was pronounced), than the Court has with respect to Defendant's pre-sentencing behavior here. Having reviewed the minutes of Defendant's sentencing, this Court has no doubt that it would likely have viewed Mr. Brown's crime and criminal history in a much less harsh light than Justice Torres did and would not have considered a sentence of 12 ½-25 years incarceration as an appropriate one for the sale of less than a grain of cocaine — even given Defendant's extensive criminal history and allegedly perjurious testimony. But Justice Torres' thoughts about the case, nevertheless, are entitled to deference here. As noted supra, Justice Torres appeared to be inclined to sentence the Defendant to the maximum term and was dissuaded from that course only by the People's more lenient recommendation.

Among all of the other facts about the Defendant, however, it is his prison disciplinary record which weighs most heavily for this Court in making the determination that substantial justice dictates a denial of Defendant's motion. That record is marked by the number of Defendant's disciplinary infractions as well as their nature and severity. It is particularly problematic to this Court that some of those infractions involved the possession of a weapon and violent conduct. The Court recognizes that prison can be a dangerous environment and that staying out of trouble while incarcerated may be exceptionally difficult. But the number and nature of Defendant's infractions, in the Court's view, strongly argue that Defendant's motion should be denied.

The heavy weight which this Court puts on Defendant's disciplinary record is based on several considerations. First, the resentencing statute emphasizes this factor. Second, an offender's conduct while incarcerated is the most recent indicia of his behavior. Third, an offenders' conduct while in prison is information which the original sentencing court, by definition, did not have or consider when imposing a defendant's original sentence. In this case, moreover, Defendant's violent conduct in prison is not a new phenomenon. It is also reflected in his criminal history. It is part of a pattern.

Courts in other resentencing applications applying the "substantial justice dictates" standard under the 2004 and 2005 DLRA have concluded that disciplinary histories like Defendant's here, or even less significant disciplinary records, warranted denial of resentencing motions. See People v. Flores, 50 AD3d 1156 (2d Dept 2008), lv dismissed, 10 NY3d 934 (resentencing denied for defendant with six prior disciplinary infractions and a prior violent felony conviction, despite positive achievements while in prison); People v. Perez, 57 AD3d 921 (2d Dept 2008) (16 disciplinary infractions while incarcerated "dictated the denial of the defendant's sentencing motion"). The resentencing provisions of the 2009 DLRA are obviously ameliorative. But they also reflect a concern for public safety. That is a concern which a court evaluating a resentencing application is bound to carefully consider. As Senator Schneiderman explained during the Senate floor debate: [*12]

In the 2004-2005 reforms on which this set of resentencing guidelines are based, a total of a little less than 500 people were resentenced . . . A larger number applied for resentencing, but the courts screened out about a third. The people who had the biggest potential to cause problems, to cause harm, were screened out. What was the result of that resentencing provision which we emulate here today for another group of offenders? The total, out of the 476 people resentenced, we had a total of less than 2 percent recidivism. . . . So the resentencing provisions worked last time, they're going to work this time. The courts will do, I believe, as they did in the 2004-2005 reforms and only let out the people who are able to reintegrate into society. Senate Floor Debate at 2682-2683.

Defendant's counsel argues that the Defendant has made efforts to better his life while in prison. The Defendant applied for entry to the Department of Correctional Services Alcohol and Substance Abuse Treatment Program (ASAT) when he began serving his sentence but was only granted entry to the program in the spring of 2009. The reason for the delay, according to Defendant's counsel, is that DOCS typically does not enroll offenders in the ASAT program until they near a date when they may be released to the community. Mr. Brown was removed from the program for disciplinary reasons, however, four months after entering it. Even assuming that this was a belated sincere effort to treat his addiction rather than an opportunistic attempt to win release on the heels of the 2009 DLRA's passage, however, Mr. Brown was removed from the program for disciplinary reasons four months later. Defendant's counsel notes that his failure to earn a GED is explained by the fact that he has spent so much time in disciplinary housing that he has not had the opportunity to attend classes. Again, however, Defendant's failure to earn a GED has been due to his own actions.

The Court recognizes that Defendant's entire life history may have, in large part, been effectively determined by his mistreatment as a child and his addiction. But Mr. Brown is also a 40 year old man, who has been offered the opportunity for drug treatment, who has been subject to multiple sanctions in an attempt to deter his criminal behavior and who, as far as the Court is aware, does not suffer from any form of mental illness. Mr. Brown, from the time he was a child, may have have been dealt a horrendously bad hand. But the law at this point presumes that he is responsible for his choices and actions. The Court believes that Mr. Brown obviously has some significant positive attributes and people who care about him. The Court also recognizes the great disappointment which the denial of Defendant's motion will likely engender, not only for him but for his family and others who are close to him. But resentencing under the 2009 DLRA, while presumptive, is not an entitlement. This Court well understands the salutary purposes of the legislature's drug law reform efforts. But the Court also believes that the denial of Defendant's motion is compelled by both the facts and circumstances here and controlling appellate authority interpreting the meaning of the "substantial justice dictates" standard in closely analogous cases. For all of these reasons, Defendant's motion for resentencing under the 2009 DLRA is denied.

January 4, 2010

Daniel Conviser

A.J.S.C.